DMCA Does Not Depend on the Copyright Clause!
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ACM vs. RIAA
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· Score: 3, Informative
However compelling you may find the argument, you are hunting a straw man. Congress expressly based its power to pass DMCA not on the Copyright Act, but upon the Commerce Clause. While indeed DMCA is codified in Title 17, it is most certainly not a copyright law.
Indeed, this was one of the points made by DMCA's advocates during the hearings in opposition to the fair use amendments.
Not in the WLAN, but in the WorldLAN. For years I experimented with real-time real space role-playing games, and in so doing I learned one absolute truth -- NOTHING IN THE GAME is more interesting to the players than the interaction with players and GM.
To walk up to a live person so you can interact moderated by a computer screen is the lamest, silliest idea possible. The human-human bandwidth is not for talking trash, but for making a real and dynamic story-telling occur -- let humans do what humans do well -- and get the machine out of the way as soon as the game mechanics permits.
I definitely think that there is much that can be done to enhance RTRSRPG using technology, but the trick is not to take a high-bandwidth situtation (human-human interaction) and cripple it to be mere color for the low-bandwidth moderated game interaction on a palm.
Nice use of the tools (Disney did this briefly a few years back with GPS-based palm-held machines running Squeak), but so far as I can tell, a lousy game design and story-telling concept.
between private entities collecting information from and about you and the government collecting information therefrom: the Government gets to TELL you what it wants to collect, and you have no choice but to secede from the Union, or accede to the invasion of privacy.
One example is the collection of pet information. The government, for reasons of animal control and public good, requires that you register with it the details of your pet's vaccinations. In Florida, those documents are registered with the County and thus become public records. This information includes, by statute, your name, address, telephone number where pet resides(whether or not unlisted), veterinarian, address and number, pet, name, breed, age, date of last vaccination, type of medication given.
This information has been used to obtain lists of veterinary practice customers, but also to obtain telephone numbers of individuals at home for scamming (complete with great human engineering information like, "How is fluffy?").
The point here is that Florida's public records act didn't permit privacy of such information -- the government took it as a condition of having the pet. It took three years of litigation and an act of the legislature to put a stop to these abuses.
I would really prefer that the State not be obliged or even permitted to make.gif photographs of me available along with drivers license information on the net without my consent.
It is one thing to hold me accountable for maintaining my privacy by not disclosing information I hold dear, or only to do so discriminately. It is another thing when the government obtains, collects or forceably extracts that information.
Accordingly, public information ought to be more restricted in how it is made available.
Some mindless drone randomly hacking at code for a hobby, regardless of his motivation, isn't going to write great code either.
Sure 90% of commercial software is crap. I think, however, it is probably more because 90% of everything is crap, than because commercial entities hire mindless drones. It is as senseless to attribute to all commercial software the traits of its weakest contributors as it is to attribute to all open source software the attributes of its greatest exponents.
I have seen the worst code contributed as open source, stuff I would fire people for if it were submitted as paid work product. I have likewise seen excellent code produced commercially, and of course, vice versa on both counts.
The ideal is to be motivated BOTH for love of the making and for personal incentives. I count myself lucky that I've never worked at anything for a living I didn't love. But a lot of that has to do with only picking the projects on which you love to work, and doing so without regard to the money. My theory has been that the money will take care of itself if you focus on excellence and passion in your work. But that doesn't mean that sucking the money out of the work makes it better.
The thing about language is this. You simply can't control how people use. Very awful language, like "thought police," "GNUsiance" and other derogatory invective has spewed forth at RMS, because it is virtually impossible to have a civil discussion with him without his correcting, not your ideas, but you language.
The FSF web site is full of definitions, and that is fine so far as it goes. However, these definitions challenge ordinary and traditional uses of words, and to the extent they do, RMS is way out of line suggesting that those who use these terms in ordinary course are "wrong."
While language-hacking was a popular thing in the 70s, it is a demagogical technique that has long since lost favor. I, for one, am quite fed up with it. RMS has done a great many things, but far greater people than he have sacrificed far more in the name of freedom, that it offends me for him to appropriate the word -- and more important, that he suggests I should not feel free to use any meaning but his.
I'll call it GNU/Linux, when he replaces "free software" with "GNUfree software."
The original post: How can anyone patent a naturaly occuring cell? This is getting way out of control
I responded: Where did you get the idea that the patent was directed to a naturally occuring cell? It isn't.
You wrote: you're exactly right. the patent isn't for the cell itself, it's basically just a patent on turning the stem cell into a part of the nervous system
Of the view that this remark had nothing to do with the original post or my response, I wrote:
I wrote, and you have not contradicted the proposition, that the patent is not directed to a naturall occuring cell. Unless you consider the term "in vitro" to relate to a natural occurence, none of your whining is responsive or on point.
Your response, amusingly: how, exactly, is a "primate embryonic stem cell" not a naturally occuring cell?
My reply: In particular, just to help you along before you err again, consider claim 1:
1. A purified preparation of pluripotent human embryonic stem cells which (i) will proliferate in an in vitro culture for over one year, (ii) maintains a karyotype in which the chromosomes are euploid and not altered through prolonged culture, (iii) maintains the potential to differentiate to derivatives of endoderm, mesoderm, and ectoderm tissues throughout the culture, and (iv) is inhibited from differentiation when cultured on a fibroblast feeder layer.
I don't know how often preparations of stem cells for a year-long period in glass happen in nature where you live. In particular, where the year-long preparation is made so the cells maintain a karyotype in which the chromosomes are euploid and not altered through prolonged culture.
Bringing us to your question: 1) where have i stated in this thread that the patent holders had a patent for the actual concept or existance stem cell? (a quote would suffice)
My answer: You never made that statement. I never said you did. You still haven't responded, on the merits, to the only proposition I have pursued in this thread: that the patent is not directed to a naturally occurring cell. It isn't. Q.E.D.
how, exactly, is a "primate embryonic stem cell" not a naturally occuring cell?
When you type shit like that, particularly in the view of the title of this thread, try to get it right, OK? RTFP suggests that you "Read the fine patent," not just scan the stupid title.
The answer to your question, exactly, is when the preparation (not the cell) is fabricated in vitro in a manner conforming with the patent claim and specification, in view of the prosecution history.
In particular, just to help you along before you err again, consider claim 1:
1. A purified preparation of pluripotent human embryonic stem cells which (i) will proliferate in an in vitro culture for over one year, (ii) maintains a karyotype in which the chromosomes are euploid and not altered through prolonged culture, (iii) maintains the potential to differentiate to derivatives of endoderm, mesoderm, and ectoderm tissues throughout the culture, and (iv) is inhibited from differentiation when cultured on a fibroblast feeder layer.
I don't know how often preparations of stem cells for a year-long period in glass happen in nature where you live. In particular, where the year-long preparation is made so the cells maintain a karyotype in which the chromosomes are euploid and not altered through prolonged culture.
Perhaps its my inexperience with such things, but the aforesaid sounds pretty man-made to me.
The great difficulty derives from the outrageously broad language in the Computer Fraud and Abuse Act and in the Stored Communications Act. Virtually every meaningful access of information to or from a computer without authority can be a basis for screaming crime, with just a few technicalities. Indeed, its nasty even in a civil context.
One incredibly important thing to take away from this communication is that if you are ever actually asked to do any kind of security audit, get a plenary release in writing that ANYTHING you do is authorized. If they don't want to do that, consult a lawyer who knows this area before you even begin to think about doing the gig. -- Its amazing how many accesses become "unauthorized" after the fact, depending upon the interests or politics of the day. Don't let this happen to you.
Pharmaceutical companies don't just recover their R&D costs. They don't just double their initial investment. They invest millions and make billions. The 17-year or whatever lifespan of a patent is a money-printing machine when it comes to things people MUST (not just would like) to purchase.
Hmmm.. 10,000% profits, huh? I better get myself some more Pharm stocks. I had no idea. Let me check some of the books.
No, it doesn't quite work out at the end of the day. No doubt, the last few years of the Prozac patent sees millions a day at virtually no marginal cost. How come their balance sheet doesn't show that they are "printing money."
Could it be that maybe they are losing some money elsewhere? For every Prozac and Viagra, there's precisely a whole bunch of other projects that never pan out at all, and never recoup the millions invested there. A buncha millions here, a buncha millions there, and pretty soon you are talking real money.
Ultimately, Pharm is a risky business when viewed on a project by project basis. And younger companies without huge portfolios capable of generating a core product or two before the money runs out disappear every day -- just like the dot coms.
Now, back to my point. These companies are making good money, at least those that survived, and when viewing their most profitable projects without comparing the fiascos. Right. How about those that didn't?
More important, what if there was no chance for them to make those profits? No profits, no investments, no investments, no drugs. Instead of grandparents who couldn't afford the drugs, nobody at all could afford the drugs, for no one can buy what doesn't exist.
Please read what I said. I did not say "imagine if there were patents" because I know there are patents on practically every engineering advance. I said what if they were used restrictively. What if Ford developed seatbelts, Honda came up with safety glass, and Volvo invented air bags?
That's what I'm trying to tell you. You seem to be suggesting that this isn't so. You are mistaken, for that pretty much describes the status quo. Really, you should check out the U.S. patent database on patents issued to the big three for automotive safety. Yet the parade of horribles never happened.
Why doesn't Ford keep an exclusive on seminal safety technology? How come not only one company has safety braking? Why don't more companies use their patents to maintain monopoly protection, rather than license them to third parties, indeed even their competitors?
Its the economy, stupid. The bottom line is, you need a patent to give you almost complete ownership of a market, not a market niche, before it is profitable to use it solely for monopoly purposes. And you need that market to have no real competitive alternatives, something like Xerox and Polaroid had for a brief time. Otherwise, there are almost ALWAYS far more profitable uses that can be made of a patent: royalty generation, cross-licensing to avoid further R&D and focusing on your core competencies to compete in a marketplace. Even in aerospace and other high-tech businesses, cross-marketing and licensing is the norm.
Monopoly rents are hard to collect. For the most time, patents act quite efficiently, in the economic sense, to assure that the marketplace gets the goods at a credible price.
Yeah, that Jonas Salk sure was one corporate whore. And awful folks like Tishler, Conover and Sheehan, damn those antibiotics. Who needed them? I'm sure they would have made it to all those poor people eventually.
No doubt the profits of companies make some drugs unavailable to those who cannot afford them. That is why there are programs to provide medical care for the poor. That way, we can have both the virtues of the social product of the marketplace, and charity to boot.
My concern about these drugs is, however, what if they never existed at all?
I wrote, and you have not contradicted the proposition, that the patent is not directed to a naturall occuring cell. Unless you consider the term "in vitro" to relate to a natural occurence, none of your whining is responsive or on point.
Imagine patents on seatbelts and airbags being used restrictively...like you could only get them or use them in Ford vehicles.
Imagine that, indeed. As a matter of fact, there are a few gazillion patents covering every aspect of the field, and some of those patents dating back decades.
AIDS vaccines are another key example. It is inexcusable that WIPO and other intellectual property organizations put corporate profit protection above human life.
Nonsense. Patents make it possible for corporations to create life-saving technology and saves lives. Pharmaceutical companies raise capital from the marketplace for research and development and regulatory testing, not because shareholders are happy to volunteer funds for R&D, but because they hope the company will make a profit. If the company could not make a profit, the R&D and development wouldn't get done, and the products would be brought to market. If the company didn't have patents, competitors would simply free-ride on the R&D and compete with them using their own work. No profits, no product, no life saving drugs.
Life saving drugs, such as tetracycline and a host of antibiotics, leukemia fighting drugs, and lifestyle preserving drugs such as Prozac and many others are the product of, not deterred by, the patent system.
Its harder than that. In Florida about five years back, a family had a child with a mortal birth defect, no cerebellum. The anencephallic child would "live" in the womb, grow organs, and live via involuntary breathing without assistance for a few hours only.
The parents were given the opportunity to abort, but opted to bring the child to term, so that the organs could be harvested and some good could come from their tragedy. Religious groups sued to enjoin the harvest, and the matter went straight to the Florida Supreme Court, which held under the brain death statute that a single pulse to or from a brain stem is sufficient to preclude considering the child dead.
As it turned out, for the infant, the organs were worthless unless they could be harvested before the child aesphixiated naturally. The victorious plaintiffs held a garish, insensitive rally, waving the injunction papers as proof of the preempinent importance of "life."
At the hospital, however, the parents could only watch helplessly as their child was brought to term, born "alive," and ultimately suffocated to death, destroying all the organs to no end at all. Their child never felt, never thought, never sensed an external stimulus and never manifest any of the sensibilities we associate with life.
Not that this case didn't represent difficult and deep questions, and I doubt the Supreme Court's question (construction of the brain death statute) readily allowed any other result, but the overarching tragedy of the matter was remarkable.
"Splitting the baby" indeed. It was an excellent call in many regards and, but for his campaign promises, may well be taken as presidential.
But one is left to wonder how, exactly, can one "compromise" on these questions? If the fertilized egg is not a living human being, then the question is a no-brainer: of course, you harvest the tissues for life-saving research. If the fertilized egg is a living human being, then the question is likewise a no-brainer: of course, you may not harvest the tissues, even if it has potential to save a life.
If you recognize a third possibility, that the fertilized egg is merely a potential life, then we have much deeper --and intellectually far more interesting-- questions. When does a potential life require protection from harm?
Of course, these questions defy authoritative answer -- and yet a binary policy decision must be made (for even the failure to make a decision effectively serves as a decision). The President was therefore faced with a Hobson's choice.
To that end, this left-of-Che-liberal salutes the man (or his advisors). It would be a great cop-out to simply announce a result, or worse, to announce a result and give a half-of-the-case justification, or worse yet, to do all of that and undertake to marginalize other reasonable arguments.
He actually gave a fair summary of some of the difficult issues and announced his policy without pretending that a fundamental principal that required the result. This enures much to his credit. (Alas, his spinmeisters continue to try to pretend this is consistent with those campaign promises and pose him as the ultimate pro-life candidate, but what can you do?)
Bush solved the political quandry by reducing the problem of sponsoring fertilized-egg-killing to one of "what do you do with the socially positive profits of an act, if the act is arguably immoral?" Credit where credit is due -- this is a stroke of genius. One needs to violate Godwin's law to point out the ultimate difficulties of the ethical position (something along the lines of whether it would be morally right to use Mengele's research if it yielded a cure for Cancer) taken, and in the end, the secret heart of most Americans wants the potential cure more than they understand the enormity of harvesting a non-implanted fertilized egg.
Amusingly, few people seem to have identified the actual ethical issue-shift that the policy accomplished. Amazingly, Hughes actually side-stepped a question about Catholic dissent by pointing out that a Pope had blessed the use of medicines resulting from research that included acts previously deemed immoral. However many debating points she thinks that may have won on intellectual grounds, suggesting a Pope's absence of infallibility suddenly unfinesses all of Bush's successes for the day.
Time will tell if there will be a price to be paid on this one. Bush turned a Hobson's choice into a chance for success and sound policy -- sound indicia of leadership.
Whether or not it succeeds, this left-liberal salutes a brilliant piece of political strategy.
Yes, there is a large amount of free and open material out there. However, this does not mean that Napster is either necessary or superior at delivering that material.
The point of free speech is that it is free. One cannot regulate free speech in all channels other than those necessary or superior to deliver it. This also used to be true of Copyright, at least before the Ninth Circuit hit with the Napster opinion.
Indeed, the Ninth Circuit came up with a similar standard to the one suggested above in the Sony Betmax case, and was amazingly completely dissed by the Supreme Court, which said that it isn't necessary that an instrumentality be either necessary or superior for fair uses to avoid contributory infringement for infringing uses, it sufficed that there COULD exist ANY substantial noninfringing use.
Now the Ninth Circuit, once more, protects Copyright holders with a test not very different from the Betamax case (ironically in a case where Sony is now a plaintiff). Perhaps the Supremes may reverse it someday, perhaps not. But don't pretend that the fact that there are other ways to distribute free subject matter doesn't mean that the public was not deprived of an important instrumentality for file-sharing.
More important, if there ever WAS another instrumentality that might be superior or necessary, the Ninth Circuit opinion assures that development of such technology would be chilled, lest those funding and using it be sued into oblivion by the big bad RIAA, right or wrong.
Fact is, Napster and DMCA have struck a blow to innovation, because they are permitting first entrants into a marketplace from competing with subsequent entrants, even where the instrumentality is not inherently infringing.
DMCA provides patent-like protection of unlimited term for unpatentable and unexamined inventions. Only the blessed unsued (read, licensed who pay the fees) can compete in that arena, and forever. First entrants win, for reasons entirely unrelated to any salutary intellectual property policies.
This is what we IP lawyers who don't work exclusively for such interests call, "a bad thing." Ultimately, its bad for those interests, but in any case, its bad for America.
At one time not too long ago, the information economy was just booming and CD sales were higher than ever. These interests went pleading to the Congress and the Courts claiming that they "needed" special protections to protect and enhance the economy.
Isn't it interesting that they got what they asked for, from both Courts and Congress, and almost immediately thereafter the information economy and record businesses tanked!
Kicking and screaming, the music and film industry has whined about EVERY new technology, from piano rolls to radio to television to audio tape to video tape to dat to streaming digital communications. Until recently, they lost every time and made much more money as a result. Now, they won and all they have done is to kill off a thriving and dynamic source of business.
Wrong, just look it up! In any case, so what?
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The End of Innovation?
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· Score: 3, Insightful
Copying copyrighted information is not stealing. Stealing would mean that if I took it, you know longer have it.
These debates over semantics are tiresome, and unproductive. The result doesn't mean anything -- it neither proves that an infringement isn't wrongful, nor does it prove that an infringement is evil. I think it is fairly clear that infringement is probably malum prohibitum (wrong because prohibited) rather than malum in se (prohibited because it is wrong. But once again, so what?
Strictly speaking, however, the quoted remark above is wrong. Dictionary definitions support the use of the verb "to steal" to embrace misappropriation of a work of authorship. On the other hand, so what? Just because a word can be linguistically used properly doesn't mean that it "proves" that one use of the verb "to steal" denotes the same form of evil as another use of verb "to steal." Sure, the denotation is correct, but a connotation equating it with, say, theft of a diamond is wrong.
More significantly, stealing one of Jon Katz' works is quite different from, and less wrong, than stealing my thunder, or stealing away to marry my daughter. (Or, while with her, attempting to steal a kiss).
From a legal perspective, the remarks above may be technically correct, although, indeed, forms of theft for which the taking of untangible copyrighted works under some circumstances. It is difficult to "steal" something intangible, just as it is difficult to "steal" real estate. So what? The appropriation or unauthorized exercise of exclusive rights of another in such property, however denominated, is actionable and, in some cases, criminal.
That aside, my Webster's Third New International includes definitions of stealing that supports the theft-name-callers. So at least one dictionary proves the contrary point. But, once again, so what?
Here it is -- copyright is at least malum prohibitum, is probably not malum in se. It is certainly actionable, and sometimes criminal.
One really doesn't need to inquire much deeper. You would be wrong, denotatively, to flame at someone who calls an infringer one who stole a work, but so what? You would probably be wrong, connotatively, to demagogue as the person making the claim, but so what?
The Electronic Communications Privacy Act and the Computer Fraud and Abuse Act combine with state "Blue Sky" computer crime and fraud law to make this tactic amazingly dangerous for anybody who does this. G-d forbid the license should (accidentally or otherwise) harm any system in any way in so doing -- the damages and liability could be enormous, and there may well be substantial criminal responsibility as well.
In short, anybody who even begins to perform a passive security audit of a system of another without having obtained written consent TO DO EVERYTHING THAT WAS DONE (exceeding authority can be a crime as well as obtaining authority in some cases) risks the slings and arrows of abusive attorneys.
It would be nice to have a vigilante virus out there -- the guy who wrote it might even become some kind of folk hero. Even so, he might spend years in jail for his good deeds, and g-d save him if he messed up.
Surprise, surprise yeat another patent on something obvious that tons of people are doing
It doesn't matter how many tons of people are doing something -- if they weren't doing it more than one year prior to the date of the application, it does not negate patentability. 35 U.S.C. s. 102(b).
It doesn't matter whether you consider the invention to be obvious. The test is whether there exists prior art that contains each and every element of the claim. If no one piece of prior art contains the element, then prior art references may be combined to "fill in" for the missing pieces, provided that the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art.
In short, "obviousness," as the term is used to determine patentability, doesn't mean what you appear to think it means.
which provides that "Whoever invents or discovers any new and useful PROCESS, machine, manufacture, or composition of matter, or ANY NEW AND USEFUL IMPROVEMENT thereof, may obtain a patent therefor, subject to the conditions and requirements of this title."
The New York DeCSS case governs linking to websites that provide access to the allegedly anticircumventing software.
And there was a case last year out of a Utah District Court involving the Mormon Church, and holding that links to copyrighted subject matter constituted a form of copyright infringement.
I recall the Microsofties gloating when the D.C. Circuit announced its result. The test, at the time, I though, as to for whom the result was better would be whether the government or Microsoft filed a petition for certiorari. It appears that it was, in fact, the government who had the better result.
The patent specification is not directed to toast, and indeed expressly distinguished making toast by convention means. It is directed to a process for refreshing stale rolls to become palatable by the use of an intense amount of heat over a short time.
The prosecution history likewise reflects this limitation.
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However compelling you may find the argument, you are hunting a straw man. Congress expressly based its power to pass DMCA not on the Copyright Act, but upon the Commerce Clause. While indeed DMCA is codified in Title 17, it is most certainly not a copyright law.
Indeed, this was one of the points made by DMCA's advocates during the hearings in opposition to the fair use amendments.
Not in the WLAN, but in the WorldLAN. For years I experimented with real-time real space role-playing games, and in so doing I learned one absolute truth -- NOTHING IN THE GAME is more interesting to the players than the interaction with players and GM.
To walk up to a live person so you can interact moderated by a computer screen is the lamest, silliest idea possible. The human-human bandwidth is not for talking trash, but for making a real and dynamic story-telling occur -- let humans do what humans do well -- and get the machine out of the way as soon as the game mechanics permits.
I definitely think that there is much that can be done to enhance RTRSRPG using technology, but the trick is not to take a high-bandwidth situtation (human-human interaction) and cripple it to be mere color for the low-bandwidth moderated game interaction on a palm.
Nice use of the tools (Disney did this briefly a few years back with GPS-based palm-held machines running Squeak), but so far as I can tell, a lousy game design and story-telling concept.
between private entities collecting information from and about you and the government collecting information therefrom: the Government gets to TELL you what it wants to collect, and you have no choice but to secede from the Union, or accede to the invasion of privacy.
.gif photographs of me available along with drivers license information on the net without my consent.
One example is the collection of pet information. The government, for reasons of animal control and public good, requires that you register with it the details of your pet's vaccinations. In Florida, those documents are registered with the County and thus become public records. This information includes, by statute, your name, address, telephone number where pet resides(whether or not unlisted), veterinarian, address and number, pet, name, breed, age, date of last vaccination, type of medication given.
This information has been used to obtain lists of veterinary practice customers, but also to obtain telephone numbers of individuals at home for scamming (complete with great human engineering information like, "How is fluffy?").
The point here is that Florida's public records act didn't permit privacy of such information -- the government took it as a condition of having the pet. It took three years of litigation and an act of the legislature to put a stop to these abuses.
I would really prefer that the State not be obliged or even permitted to make
It is one thing to hold me accountable for maintaining my privacy by not disclosing information I hold dear, or only to do so discriminately. It is another thing when the government obtains, collects or forceably extracts that information.
Accordingly, public information ought to be more restricted in how it is made available.
Some mindless drone randomly hacking at code for a hobby, regardless of his motivation, isn't going to write great code either.
Sure 90% of commercial software is crap. I think, however, it is probably more because 90% of everything is crap, than because commercial entities hire mindless drones. It is as senseless to attribute to all commercial software the traits of its weakest contributors as it is to attribute to all open source software the attributes of its greatest exponents.
I have seen the worst code contributed as open source, stuff I would fire people for if it were submitted as paid work product. I have likewise seen excellent code produced commercially, and of course, vice versa on both counts.
The ideal is to be motivated BOTH for love of the making and for personal incentives. I count myself lucky that I've never worked at anything for a living I didn't love. But a lot of that has to do with only picking the projects on which you love to work, and doing so without regard to the money. My theory has been that the money will take care of itself if you focus on excellence and passion in your work. But that doesn't mean that sucking the money out of the work makes it better.
The thing about language is this. You simply can't control how people use. Very awful language, like "thought police," "GNUsiance" and other derogatory invective has spewed forth at RMS, because it is virtually impossible to have a civil discussion with him without his correcting, not your ideas, but you language.
The FSF web site is full of definitions, and that is fine so far as it goes. However, these definitions challenge ordinary and traditional uses of words, and to the extent they do, RMS is way out of line suggesting that those who use these terms in ordinary course are "wrong."
While language-hacking was a popular thing in the 70s, it is a demagogical technique that has long since lost favor. I, for one, am quite fed up with it. RMS has done a great many things, but far greater people than he have sacrificed far more in the name of freedom, that it offends me for him to appropriate the word -- and more important, that he suggests I should not feel free to use any meaning but his.
I'll call it GNU/Linux, when he replaces "free software" with "GNUfree software."
The original post: How can anyone patent a naturaly occuring cell? This is getting way out of control
I responded: Where did you get the idea that the patent was directed to a naturally occuring cell? It isn't.
You wrote: you're exactly right. the patent isn't for the cell itself, it's basically just a patent on turning the stem cell into a part of the nervous system
Of the view that this remark had nothing to do with the original post or my response, I wrote:
I wrote, and you have not contradicted the proposition, that the patent is not directed to a naturall occuring cell. Unless you consider the term "in vitro" to relate to a natural occurence, none of your whining is responsive or on point.
Your response, amusingly: how, exactly, is a "primate embryonic stem cell" not a naturally occuring cell?
My reply: In particular, just to help you along before you err again, consider claim 1:
Bringing us to your question: 1) where have i stated in this thread that the patent holders had a patent for the actual concept or existance stem cell? (a quote would suffice)
My answer: You never made that statement. I never said you did. You still haven't responded, on the merits, to the only proposition I have pursued in this thread: that the patent is not directed to a naturally occurring cell. It isn't. Q.E.D.
That would make you clueless.
When you type shit like that, particularly in the view of the title of this thread, try to get it right, OK? RTFP suggests that you "Read the fine patent," not just scan the stupid title.
The answer to your question, exactly, is when the preparation (not the cell) is fabricated in vitro in a manner conforming with the patent claim and specification, in view of the prosecution history.
In particular, just to help you along before you err again, consider claim 1:
I don't know how often preparations of stem cells for a year-long period in glass happen in nature where you live. In particular, where the year-long preparation is made so the cells maintain a karyotype in which the chromosomes are euploid and not altered through prolonged culture.
Perhaps its my inexperience with such things, but the aforesaid sounds pretty man-made to me.
The great difficulty derives from the outrageously broad language in the Computer Fraud and Abuse Act and in the Stored Communications Act. Virtually every meaningful access of information to or from a computer without authority can be a basis for screaming crime, with just a few technicalities. Indeed, its nasty even in a civil context.
One incredibly important thing to take away from this communication is that if you are ever actually asked to do any kind of security audit, get a plenary release in writing that ANYTHING you do is authorized. If they don't want to do that, consult a lawyer who knows this area before you even begin to think about doing the gig. -- Its amazing how many accesses become "unauthorized" after the fact, depending upon the interests or politics of the day. Don't let this happen to you.
Pharmaceutical companies don't just recover their R&D costs. They don't just double their initial investment. They invest millions and make billions. The 17-year or whatever lifespan of a patent is a money-printing machine when it comes to things people MUST (not just would like) to purchase.
Hmmm.. 10,000% profits, huh? I better get myself some more Pharm stocks. I had no idea. Let me check some of the books.
No, it doesn't quite work out at the end of the day. No doubt, the last few years of the Prozac patent sees millions a day at virtually no marginal cost. How come their balance sheet doesn't show that they are "printing money."
Could it be that maybe they are losing some money elsewhere? For every Prozac and Viagra, there's precisely a whole bunch of other projects that never pan out at all, and never recoup the millions invested there. A buncha millions here, a buncha millions there, and pretty soon you are talking real money.
Ultimately, Pharm is a risky business when viewed on a project by project basis. And younger companies without huge portfolios capable of generating a core product or two before the money runs out disappear every day -- just like the dot coms.
Now, back to my point. These companies are making good money, at least those that survived, and when viewing their most profitable projects without comparing the fiascos. Right. How about those that didn't?
More important, what if there was no chance for them to make those profits? No profits, no investments, no investments, no drugs. Instead of grandparents who couldn't afford the drugs, nobody at all could afford the drugs, for no one can buy what doesn't exist.
Please read what I said. I did not say "imagine if there were patents" because I know there are patents on practically every engineering advance. I said what if they were used restrictively. What if Ford developed seatbelts, Honda came up with safety glass, and Volvo invented air bags?
That's what I'm trying to tell you. You seem to be suggesting that this isn't so. You are mistaken, for that pretty much describes the status quo. Really, you should check out the U.S. patent database on patents issued to the big three for automotive safety. Yet the parade of horribles never happened.
Why doesn't Ford keep an exclusive on seminal safety technology? How come not only one company has safety braking? Why don't more companies use their patents to maintain monopoly protection, rather than license them to third parties, indeed even their competitors?
Its the economy, stupid. The bottom line is, you need a patent to give you almost complete ownership of a market, not a market niche, before it is profitable to use it solely for monopoly purposes. And you need that market to have no real competitive alternatives, something like Xerox and Polaroid had for a brief time. Otherwise, there are almost ALWAYS far more profitable uses that can be made of a patent: royalty generation, cross-licensing to avoid further R&D and focusing on your core competencies to compete in a marketplace. Even in aerospace and other high-tech businesses, cross-marketing and licensing is the norm.
Monopoly rents are hard to collect. For the most time, patents act quite efficiently, in the economic sense, to assure that the marketplace gets the goods at a credible price.
Yeah, that Jonas Salk sure was one corporate whore. And awful folks like Tishler, Conover and Sheehan, damn those antibiotics. Who needed them? I'm sure they would have made it to all those poor people eventually.
No doubt the profits of companies make some drugs unavailable to those who cannot afford them. That is why there are programs to provide medical care for the poor. That way, we can have both the virtues of the social product of the marketplace, and charity to boot.
My concern about these drugs is, however, what if they never existed at all?
I wrote, and you have not contradicted the proposition, that the patent is not directed to a naturall occuring cell. Unless you consider the term "in vitro" to relate to a natural occurence, none of your whining is responsive or on point.
Imagine patents on seatbelts and airbags being used restrictively...like you could only get them or use them in Ford vehicles.
Imagine that, indeed. As a matter of fact, there are a few gazillion patents covering every aspect of the field, and some of those patents dating back decades.
AIDS vaccines are another key example. It is inexcusable that WIPO and other intellectual property organizations put corporate profit protection above human life.
Nonsense. Patents make it possible for corporations to create life-saving technology and saves lives. Pharmaceutical companies raise capital from the marketplace for research and development and regulatory testing, not because shareholders are happy to volunteer funds for R&D, but because they hope the company will make a profit. If the company could not make a profit, the R&D and development wouldn't get done, and the products would be brought to market. If the company didn't have patents, competitors would simply free-ride on the R&D and compete with them using their own work. No profits, no product, no life saving drugs.
Life saving drugs, such as tetracycline and a host of antibiotics, leukemia fighting drugs, and lifestyle preserving drugs such as Prozac and many others are the product of, not deterred by, the patent system.
Where did you get the idea that the patent was directed to a naturally occuring cell? It isn't.
Its harder than that. In Florida about five years back, a family had a child with a mortal birth defect, no cerebellum. The anencephallic child would "live" in the womb, grow organs, and live via involuntary breathing without assistance for a few hours only.
The parents were given the opportunity to abort, but opted to bring the child to term, so that the organs could be harvested and some good could come from their tragedy. Religious groups sued to enjoin the harvest, and the matter went straight to the Florida Supreme Court, which held under the brain death statute that a single pulse to or from a brain stem is sufficient to preclude considering the child dead.
As it turned out, for the infant, the organs were worthless unless they could be harvested before the child aesphixiated naturally. The victorious plaintiffs held a garish, insensitive rally, waving the injunction papers as proof of the preempinent importance of "life."
At the hospital, however, the parents could only watch helplessly as their child was brought to term, born "alive," and ultimately suffocated to death, destroying all the organs to no end at all. Their child never felt, never thought, never sensed an external stimulus and never manifest any of the sensibilities we associate with life.
Not that this case didn't represent difficult and deep questions, and I doubt the Supreme Court's question (construction of the brain death statute) readily allowed any other result, but the overarching tragedy of the matter was remarkable.
"Splitting the baby" indeed. It was an excellent call in many regards and, but for his campaign promises, may well be taken as presidential.
But one is left to wonder how, exactly, can one "compromise" on these questions? If the fertilized egg is not a living human being, then the question is a no-brainer: of course, you harvest the tissues for life-saving research. If the fertilized egg is a living human being, then the question is likewise a no-brainer: of course, you may not harvest the tissues, even if it has potential to save a life.
If you recognize a third possibility, that the fertilized egg is merely a potential life, then we have much deeper --and intellectually far more interesting-- questions. When does a potential life require protection from harm?
Of course, these questions defy authoritative answer -- and yet a binary policy decision must be made (for even the failure to make a decision effectively serves as a decision). The President was therefore faced with a Hobson's choice.
To that end, this left-of-Che-liberal salutes the man (or his advisors). It would be a great cop-out to simply announce a result, or worse, to announce a result and give a half-of-the-case justification, or worse yet, to do all of that and undertake to marginalize other reasonable arguments.
He actually gave a fair summary of some of the difficult issues and announced his policy without pretending that a fundamental principal that required the result. This enures much to his credit. (Alas, his spinmeisters continue to try to pretend this is consistent with those campaign promises and pose him as the ultimate pro-life candidate, but what can you do?)
Bush solved the political quandry by reducing the problem of sponsoring fertilized-egg-killing to one of "what do you do with the socially positive profits of an act, if the act is arguably immoral?" Credit where credit is due -- this is a stroke of genius. One needs to violate Godwin's law to point out the ultimate difficulties of the ethical position (something along the lines of whether it would be morally right to use Mengele's research if it yielded a cure for Cancer) taken, and in the end, the secret heart of most Americans wants the potential cure more than they understand the enormity of harvesting a non-implanted fertilized egg.
Amusingly, few people seem to have identified the actual ethical issue-shift that the policy accomplished. Amazingly, Hughes actually side-stepped a question about Catholic dissent by pointing out that a Pope had blessed the use of medicines resulting from research that included acts previously deemed immoral. However many debating points she thinks that may have won on intellectual grounds, suggesting a Pope's absence of infallibility suddenly unfinesses all of Bush's successes for the day.
Time will tell if there will be a price to be paid on this one. Bush turned a Hobson's choice into a chance for success and sound policy -- sound indicia of leadership.
Whether or not it succeeds, this left-liberal salutes a brilliant piece of political strategy.
Yes, there is a large amount of free and open material out there. However, this does not mean that Napster is either necessary or superior at delivering that material.
The point of free speech is that it is free. One cannot regulate free speech in all channels other than those necessary or superior to deliver it. This also used to be true of Copyright, at least before the Ninth Circuit hit with the Napster opinion.
Indeed, the Ninth Circuit came up with a similar standard to the one suggested above in the Sony Betmax case, and was amazingly completely dissed by the Supreme Court, which said that it isn't necessary that an instrumentality be either necessary or superior for fair uses to avoid contributory infringement for infringing uses, it sufficed that there COULD exist ANY substantial noninfringing use.
Now the Ninth Circuit, once more, protects Copyright holders with a test not very different from the Betamax case (ironically in a case where Sony is now a plaintiff). Perhaps the Supremes may reverse it someday, perhaps not. But don't pretend that the fact that there are other ways to distribute free subject matter doesn't mean that the public was not deprived of an important instrumentality for file-sharing.
More important, if there ever WAS another instrumentality that might be superior or necessary, the Ninth Circuit opinion assures that development of such technology would be chilled, lest those funding and using it be sued into oblivion by the big bad RIAA, right or wrong.
Fact is, Napster and DMCA have struck a blow to innovation, because they are permitting first entrants into a marketplace from competing with subsequent entrants, even where the instrumentality is not inherently infringing.
DMCA provides patent-like protection of unlimited term for unpatentable and unexamined inventions. Only the blessed unsued (read, licensed who pay the fees) can compete in that arena, and forever. First entrants win, for reasons entirely unrelated to any salutary intellectual property policies.
This is what we IP lawyers who don't work exclusively for such interests call, "a bad thing." Ultimately, its bad for those interests, but in any case, its bad for America.
At one time not too long ago, the information economy was just booming and CD sales were higher than ever. These interests went pleading to the Congress and the Courts claiming that they "needed" special protections to protect and enhance the economy.
Isn't it interesting that they got what they asked for, from both Courts and Congress, and almost immediately thereafter the information economy and record businesses tanked!
Kicking and screaming, the music and film industry has whined about EVERY new technology, from piano rolls to radio to television to audio tape to video tape to dat to streaming digital communications. Until recently, they lost every time and made much more money as a result. Now, they won and all they have done is to kill off a thriving and dynamic source of business.
Copying copyrighted information is not stealing. Stealing would mean that if I took it, you know longer have it.
These debates over semantics are tiresome, and unproductive. The result doesn't mean anything -- it neither proves that an infringement isn't wrongful, nor does it prove that an infringement is evil. I think it is fairly clear that infringement is probably malum prohibitum (wrong because prohibited) rather than malum in se (prohibited because it is wrong. But once again, so what?
Strictly speaking, however, the quoted remark above is wrong. Dictionary definitions support the use of the verb "to steal" to embrace misappropriation of a work of authorship. On the other hand, so what? Just because a word can be linguistically used properly doesn't mean that it "proves" that one use of the verb "to steal" denotes the same form of evil as another use of verb "to steal." Sure, the denotation is correct, but a connotation equating it with, say, theft of a diamond is wrong.
More significantly, stealing one of Jon Katz' works is quite different from, and less wrong, than stealing my thunder, or stealing away to marry my daughter. (Or, while with her, attempting to steal a kiss).
From a legal perspective, the remarks above may be technically correct, although, indeed, forms of theft for which the taking of untangible copyrighted works under some circumstances. It is difficult to "steal" something intangible, just as it is difficult to "steal" real estate. So what? The appropriation or unauthorized exercise of exclusive rights of another in such property, however denominated, is actionable and, in some cases, criminal.
That aside, my Webster's Third New International includes definitions of stealing that supports the theft-name-callers. So at least one dictionary proves the contrary point. But, once again, so what?
Here it is -- copyright is at least malum prohibitum, is probably not malum in se. It is certainly actionable, and sometimes criminal.
One really doesn't need to inquire much deeper. You would be wrong, denotatively, to flame at someone who calls an infringer one who stole a work, but so what? You would probably be wrong, connotatively, to demagogue as the person making the claim, but so what?
The Electronic Communications Privacy Act and the Computer Fraud and Abuse Act combine with state "Blue Sky" computer crime and fraud law to make this tactic amazingly dangerous for anybody who does this. G-d forbid the license should (accidentally or otherwise) harm any system in any way in so doing -- the damages and liability could be enormous, and there may well be substantial criminal responsibility as well.
In short, anybody who even begins to perform a passive security audit of a system of another without having obtained written consent TO DO EVERYTHING THAT WAS DONE (exceeding authority can be a crime as well as obtaining authority in some cases) risks the slings and arrows of abusive attorneys.
It would be nice to have a vigilante virus out there -- the guy who wrote it might even become some kind of folk hero. Even so, he might spend years in jail for his good deeds, and g-d save him if he messed up.
Surprise, surprise yeat another patent on something obvious that tons of people are doing
It doesn't matter how many tons of people are doing something -- if they weren't doing it more than one year prior to the date of the application, it does not negate patentability. 35 U.S.C. s. 102(b).
It doesn't matter whether you consider the invention to be obvious. The test is whether there exists prior art that contains each and every element of the claim. If no one piece of prior art contains the element, then prior art references may be combined to "fill in" for the missing pieces, provided that the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art.
In short, "obviousness," as the term is used to determine patentability, doesn't mean what you appear to think it means.
which provides that "Whoever invents or discovers any new and useful PROCESS, machine, manufacture, or composition of matter, or ANY NEW AND USEFUL IMPROVEMENT thereof, may obtain a patent therefor, subject to the conditions and requirements of this title."
The New York DeCSS case governs linking to websites that provide access to the allegedly anticircumventing software.
And there was a case last year out of a Utah District Court involving the Mormon Church, and holding that links to copyrighted subject matter constituted a form of copyright infringement.
I recall the Microsofties gloating when the D.C. Circuit announced its result. The test, at the time, I though, as to for whom the result was better would be whether the government or Microsoft filed a petition for certiorari. It appears that it was, in fact, the government who had the better result.
The patent specification is not directed to toast, and indeed expressly distinguished making toast by convention means. It is directed to a process for refreshing stale rolls to become palatable by the use of an intense amount of heat over a short time.
The prosecution history likewise reflects this limitation.